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You May Need to Update Your Designation of Healthcare Surrogate

Florida recently made substantial changes to Chapter 765 which governs the rules on designations of healthcare surrogates. Your healthcare surrogate is the trusted person you choose to help make your medical decisions as you age or go through a disease process.  The recent modifications to Florida law created significant positive changes and we believe that all of our clients should have new surrogate forms if they have not updated their documents since September of 2015.

The changes to the law were made as some competent adults may want to receive immediate assistance in making health care decisions or accessing health information, or both, without the strict determination of incapacity. Under the old designation of healthcare surrogate law, a physician or physicians would need to have a formal declaration of the patient’s incapacity in order to activate the healthcare surrogate. This could lead to delays and other practical problems. With the problems of waiting for the formal declaration of incapacity needed in order to activate the healthcare surrogate, the legislature made some significant changes that your estate planning documents should reflect.

First, health care decisions made by a surrogate do not have to wait until the patient is deemed incapacitated. Instead, if the designation of health care surrogate specifically provides that authority commences sooner, the surrogate can:

a. Provide informed consent, refuse treatment, or withdraw consent for treatment;

b. Apply for public benefits; and

c. Access the patient’s private healthcare information.

Particularly, when a patient may be going in and out of competency, the health care surrogate can act on the principal’s behalf, even when the patient is lucid at the time. The surrogate cannot override the patient’s wishes when capacity is present, of course.

The second big change was that the patient’s private health care information can be accessed by the surrogate before the patient is declared incapacitated, which will be very helpful for families in emergency situations.

The statute also provides a clear path to a nominated alternate health care surrogate. Here, in the event that the serving health care surrogate is not “willing, able or reasonably available to perform his or her duties,” the alternate nominated surrogate can help. “Reasonably available” means readily able to be contacted without undue effort and willing and able to act in a timely manner considering the urgency of the patient's health care needs.

These changes are effective as of September 30, 2015, and we have updated our advance directives (i.e., designation of healthcare surrogate and living will) accordingly.

If you have questions about your own estate or incapacity planning documents, please do not hesitate to schedule a consultation with your estate planning and elder law attorneys.

D. Rep DeLoach III
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Estate Planning and Board Certified Elder Law Attorney
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steve 02/09/2017 10:19 AM
Can a patient have more than one healthcare surrogate? Say, two children when both cant be there at the same time, one filling in for the other?
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barbara bennison 11/30/2020 12:42 PM
I have a healthcare proxy signed and notarized in Massachusetts. Is it valid in Florida?
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Rep DeLoach 11/30/2020 12:58 PM
Good question! If the document created out of state was legal in Massachusetts, then it will be legal in Florida and can be relied upon.
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Frank 02/01/2021 11:23 AM
What if two surrogates are named in an advanced medical directive but have different views on the appropriate care for their elder. Does one person hold priority over the other?
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Rep DeLoach 02/01/2021 11:27 AM
Frank, We do not advise naming more than one person as a health care surrogate, but if an advance directive names more than one person and the surrogates do not agree, no one person takes priority. The named surrogates must work it out, unfortunately - and this is the reason why we do not name more than one person as surrogate.
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